Oil-as-waste case rumbles on

A court case which examines the legal status of clean fuel oil highlight the notorious difficulty in coming up with a concrete definition of what counts as waste.

R (on the application of OSS Group Ltd) v Environment Agency

Following an application made by OSS Group Ltd on 17 March 2006 for judicial review of the Environment Agency's (EA) decision to classify clean fuel oil as waste, which would allow the EA to take enforcement action against OSS Group Ltd, its customers, or third parties in connection with the use of clean fuel oil, due to the financial implications of such classification by the EA pending determination of the judicial review proceedings, OSS Group Ltd applied for interim relief.

This was granted on 23 March, when the High Court ordered that the EA had to refrain from taking enforcement action that was based on the classification of clean fuel oil as waste, until a further order of the court had been made or final disposal of the judicial review proceedings.

However, at a hearing on 29 June 2006, the EA sought to have the order of the Court set aside. It was argued on behalf of the EA, that the order was contrary to the principle that a decision of a prosecutor to prosecute might not, absent dishonesty, mala fides or exceptional circumstances, be challenged by way of judicial review.

However, in considering the issue of availability of remedy, the Court dismissed the application to have the order set aside and held that, having regard to case law and the interests of justice, the order was not wrong in principle and, in the circumstances, the risk of injustice was lower if the order was maintained than if it was set aside.